In 2005, Texas residents voted to add a statute to the state constitution that would ban gay marriage in the state. The law in Texas has not changed; however, other states have begun to legally recognize same-sex marriages. Because of this, a gray area exists when legally married same-sex couples move to Texas. When it comes to same-sex divorce in particular, there is no precedent that has established regarding how Texas courts should proceed.
That may change soon, however, as two Dallas same-sex couples that have been denied legal divorces are taking their cases to the Texas Supreme Court. Both couples relocated to Texas after getting legally married in Massachusetts. One of the couples filed for divorce as early as 2009.
Texas Attorney General Greg Abbot has stated that Texas cannot grant a divorce without first legally recognizing the marriage. A representative from a group known as Texas Values states that the state constitution makes it clear: Same-sex divorce is not recognized because same-sex marriage is not recognized.
However, an attorney for one of the couples states that Texas’s gay marriage ban does not include divorce. He maintains that marriage and divorce are vastly different things, arguing that divorce is a legal process that involves issues such as property division and child custody, which is completely different from marriage. The attorney also states that if Abbot is against gay marriage, he shouldn’t be fighting to keep these couples married. A ruling from the Texas Supreme Court is expected in the coming months.
Currently, the only thing that a same-sex couple in Texas can do to get something resembling a divorce is to void their marriage, which would involve stating that their marriage was never legal. This does not solve disputes over things such as marital assets or retirement accounts, however. As more and more states legalize gay marriage, it will be interesting to see how divorce issues will be handled in states that maintain the ban.
Source: kvue.com, “Texas Supreme Court tackles same-sex divorce” Quita Culpepper, Nov. 05, 2013
